Our New Immigration Reality: Presume Enforcement

Since Trump’s election it has sometimes been difficult to describe to people what has actually changed in the immigration field. Aside from the two Muslim bans, both of which were blocked by the courts, very little, on the surface, seems to have significantly changed. However, we are learning more and more that behind the scenes the nuanced changes in the way the USCIS is interpreting the law and is treating applicants for benefits is in fact quite stark. Here are a few examples:

Arrests at USCIS Interviews

A key example of the change is one we have seen recently in Kansas City: arrests at USCIS interviews. When a person applies for a benefit at USCIS it is possible that the USCIS will ask to interview them. But, if that person already has an “order of removal” which has never been used to actually deport them, they’re technically eligible to be arrested and deported by Immigration and Customs Enforcement or “ICE.” Because those are two different agencies, though, these arrests have never been automatic. Rather, in the old days, if a USCIS officer preparing for an interview were to see an old deportation order in the person’s file, that officer could call the local ICE office and ask to have an ICE officer come to arrest the applicant.

For the last eight years we haven’t really had to worry much about this. When Obama said he would prioritize enforcement efforts against serious criminals and people who are dangerous, this has mostly meant that people with final orders of removal weren’t really at much risk of being arrested at their USCIS interviews. In fact, I hadn’t seen in the years Obama was present.

What do you do if you have an interview and the beneficiary has a final order of removal? Don’t have them go to the interview. Perhaps the petitioner (the U.S. citizen or permanent resident who filed the visa application for them) can go to the interview. We’ve been reassured in Kansas City that in these circumstances they’ll allow that. I can’t guarantee that will work elsewhere in the United States.

Prosecutorial Discretion

All prosecutors are empowered with the discretion not to prosecute. They have to make choices. Our immigration system, much like our criminal systems in the United States, does not have the resources to prosecute everyone. Someday Congress might choose to devote enough funds to such an endeavor, but they haven’t done so thus far.

Under the Obama administration, the prioritization of resources to target criminals had led to a list of factors prosecutors were supposed to use in deciding when to prosecute someone for deportation.

In this new regime, there are no priorities or factors. All of the prior guidance is gone. This means if a prosecutor wants to prosecute everyone, even the 80 year old grandmother who has not so much as a traffic ticket and has been here for 30 years, they can. There is nothing at the top telling them not to.

That’s not to say all ICE officers or all DHS prosecutors are using their discretion to target everyone. Most people in those positions are just doing their jobs and don’t want to hurt anyone. But for the truly gung-ho officers and attorneys who work in immigration enforcement, this is truly a no-holds-barred period for immigration enforcement.

What does that mean for the limited resources to deport everyone? I can’t predict how this will all shake out. I know we don’t have the resources to deport everyone. And if more resources are not devoted to this system, the increased focus on prosecution will mean more backlogs, more delays, and longer wait times for the next hearing. Of course, these delays have the opposite effect than what the administration claims is their intent. The rising tide raises all boats, meaning everyone experiences the backlogs, even people who aren’t eligible for much immigration relief and may have a scattered criminal history.

Tougher Adjudications

We are definitely seeing a change in the way old visa applications were adjudicated. Take, for example, U Visa applications. In the old days, the Vermont Service Center’s “VAWA Unit” which was in charge of adjudicating all U Visas was fairly easy-going about U visa applications. They were willing to waive certain past indiscretions in favor of protecting immigrant victims of crime.

But recently we’ve seen far more push-back on these visas. People who are eligible for visas but who need to apply for a discretionary waiver because they committed a minor crime many years ago are now getting denied when they used to get approved. Again, there has been no official policy announcement, but on the ground we are most definitely seeing this shift.

Less Options

Again, this isn’t a documented change, but we’re seeing it more and more. Take, for example, the announcement that Temporary Protected Status or “TPS” for Haitians won’t be renewed this year. There are about 55,000 Haitians in the United States who have TPS, which means they don’t have to return to Haiti. This is because Haiti is still largely unrecovered from the 2010 earthquake. More than 750,000 people still don’t have safe water for drinking and cooking and there have been cholera outbreaks and other problems.

In normal times, Haiti’s TPS would of course get renewed. But these are not normal times.

Another example: immigrants have been able to use the USCIS Ombudsman to help fix stuck applications and unexplained delays in their applications. But now Trump has appointed a virulent anti-immigrant activist to this position. What does that mean? It’s possible they’ll keep helping with stuck applications, but that seems unlikely given who they’ve appointed to run the office.

Final Thoughts

Sorry to make it all sound so bleak. We’re still fighting for every client and are ready to take on the current Administration when they break the law. We’ll keep suing them and appealing bad decisions. But it’s important to at least take note of this new reality. Even though there haven’t actually been all that many real changes to immigration law, we’re starting to feel the very real effects of the Administration’s views on immigrants. Everyone would be well-advised to be cautious. If you let your guard down during the Obama administration, get it back up.